“Are you ready, Are you ready for this?”
On Friday, December 20 a federal trial court in Utah held in Kitchen v. Herbert that state’s statutory and constitutional bans on marriage by same-sex couples unconstitutional and enjoined their enforcement. While this decision could be appealed by the state (and I would be pleasantly surprised if Utah did not appeal), same-sex couples are already marrying. Coming the day after the New Mexico Supreme Court held that that state’s exclusion of same-sex couples from marriage violated the state constitution, this decision highlights the huge crack in the edifice of marriage discrimination in the U.S., eighteen states wide (plus the District of Columbia) and growing.
The federal trial court held that Utah’s marriage ban was unconstitutional because it violated same-sex couples’ fundamental right to marry protected by the Due Process Clause of the U.S. Constitution and because it violated the Constitution’s Equal Protection Clause. Quoting Justice Scalia’s dissent in United States v. Windsor (the U.S. Supreme Court case that struck down part of the federal “Defense of Marriage Act”), the court concluded that “the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law.”
Unlike the New Mexico court, the Utah federal court squarely relied on the constitutional right to marry. It rejected the state’s claim that the marriage exclusion did not violate that right because lesbigay people could marry heterosexually. That liberty would be “illusory,” the court said: “The State’s prohibition of the Plaintiffs’ right to choose a same-sex marriage partner renders their fundamental right to marry as meaningless as if the State recognized the Plaintiffs’ right to bear arms but not their right to buy bullets.”
Like the New Mexico case, Kitchen rejected the claim that Utah was justified in denying marriage to same-sex couples because they cannot procreate by themselves. Procreation “is not a defining characteristic of conjugal relationships from a legal and constitutional point of view. The State’s position demeans the dignity not just of same-sex couples, but of the many opposite-sex couples who are unable to reproduce or who choose not to have children.” Utah’s effort to get around the fact that it does not make procreative ability “a defining characteristic of conjugal relationships from a legal … point of view” failed. As the court observed, “Same-sex couples are just as capable of providing support for future generations as opposite-sex couples, grandparents, or other caregivers. And there is no difference between same-sex couples who choose not to have children and those opposite-sex couples who exercise their constitutionally protected right not to procreate.”
The court also rejected the State’s ‘new right of same-sex marriage’ argument. It properly noted that the Supreme Court did not use this approach to framing the right at issue in Loving v. Virginia. And after discussing the reasons people seek to marry, the court concluded that “[b]oth same-sex and opposite-sex marriage are therefore simply manifestations of one right—the right to marry—applied to people with different sexual identities.” Relying on Lawrence v. Texas, the court similarly concluded that this analysis was not changed by the fact that there was no long tradition of honoring assertions of the right to marry by same-sex couples. And the Court again quoted Justice Scalia, this time his Lawrence dissent, where he had argued that the decision would lead down a slippery slope to same-sex couples marrying. (Although Scalia believes this the wrong constitutional interpretation, perhaps it will be of some comfort to him to be proven right.) Because Utah’s marriage ban burdened same-sex couple’s right to marry, the court held it would have to survive strict scrutiny. But since, as the court discusses under its equal protection analysis, the ban did not even have a rational basis, it necessarily also failed the less deferential strict scrutiny applicable under the right to marry.
The court then addressed the plaintiff couples’ equal protection challenge to Utah’s marriage ban. In contrast to the previous day’s New Mexico Supreme court decision, the trial court here seemed to agree that the ban amounted to sex discrimination. The court noted, again correctly, that the Loving decision rejected the argument that Virginia’s interracial marriage ban didn’t discriminate on the basis of race because everyone was free to marry someone of their own race. But the court did not definitively conclude that it must subject the state laws to the intermediate scrutiny used for sex discrimination because the ban failed even the easier test of rational basis review. And rational basis review was what the court believed it had to apply to the claim that the marriage ban discriminates on the basis of sexual orientation due to Tenth Circuit Court of Appeals precedent it viewed as binding.
When the court considered the point of the marriage ban, the state did not look good: “”First, the avowed purpose and practical effect of Amendment 3 is to deny the responsibilities and benefits of marriage to same-sex couples, which is another way of saying that the law imposes inequality. Indeed, Amendment 3 went beyond denying gay and lesbian individuals the right to marry and held that no domestic union could be given the same or substantially equivalent legal effect as marriage. This wording suggests that the imposition of inequality was not merely the law’s effect, but its goal.” And the fact that the state entrenched its statutory ban in the state constitution suggested that this “preemptively denied rights to gay and lesbian citizens of Utah that they may have already had under the Utah Constitution.”
In the end, though, the court thought that Utah’s marriage ban was unconstitutional under “the well-settled rational basis test.” It had to bear a rational relationship to a legitimate state interest. In answering that question, the court rightly focused not simply on why Utah offers marriage to different-sex couples, but on why the state banned it for same-sex couples, and so on “whether the State’s interests in responsible procreation and optimal child-rearing are furthered by prohibiting same-sex couples from marrying.” And the answer to that inquiry was a resounding ‘No.’
Indeed, the court concluded that “it defies reason to conclude that allowing same-sex couples to marry will diminish the example that married opposite-sex couples set for their unmarried counterparts.” And the state’s interest in “optimal child rearing” fared no better than this “responsible procreation” interest. The basic problem here was that “the State fails to demonstrate any rational link between its prohibition of same-sexvmarriage and its goal of having more children raised in the family structure the State wishes to promote.” The court also rejected Utah’s claimed interest in proceeding with caution because of a lack of any evidence of harms from letting same-sex couples marry and because it would improperly shield all state discriminations from any meaningful rational basis review, for states could always assert an interest in wanting more evidence before it stopped discriminating. Finally, the court concluded that preserving the “traditional definition of marriage” as different-sex only for the sake of preserving that “tradition” was an inadequate justification.
Because the marriage discrimination was unconstitutional, the court did not think it necessary separately to analyze a challenge to Utah’s refusal to recognize marriages of same-sex couples performed by other jurisdictions. It was all unconstitutional, and the court hammered this home by a detailed comparison of the state’s arguments here with the state’s arguments in defense of the interracial marriage bans invalidated in Loving v. Virginia. The state simply cannot demean same-sex couples in the way that the marriage ban did.
So, as noted earlier, the federal court enjoined Utah from enforcing its marriage ban. Time will tell whether the state appeals, and, if it does, whether the decision gets affirmed. For now, though, same-sex couples in Utah and their families can and are enjoying a wonderful Christmas present – constitutional justice and the equal freedom to marry.